Father's estate not distributed by executor after year..

B

blath_dubh

Guest
My Father passed away in March 2007. Both my parents were separated and he had a long term partner. He appointed his partner as executor to his Will, in which he left both his share of his property and the business to her in her lifetime and thereafter to myself, with anything that was held in his own name to be left only to me. As of yet she has not distributed any of his estate in accordance with his will. She also decided after the reading of the Will that she wanted to sell the company. I was working for him at the time and therefore lost my job without even a day notice of her decision, communication between both she and I broke down thereafter.
I did seek legal advise in relation to this, but they have been unable to get any information whatsoever in relation to where I stand from his partner, the executor, or from her solicitor, who the Will was made with and who was also a friend of my Father. It is almost a year now since my Father passed away and last month I was told that his partner has pulled out from her solicitors without transferring the matter to a new one. I was just wondering if anybody has had a similar situation or could please advise me if there is anything I can do to find out what is going on? Any help would be appreciated as these things are hard enough without all the hassle on top of it!! Thanks.
 
This is a complex probate matter and the best advice is for you to seek advice from your own solicitor, not any of the solicitors representing either your fathers estate and/or his partner.

As your father was separated, then you and your siblings (if any) are legally speaking his next of kin. A long term partner has zero rights in Irish law as next of kin. There are inheritance laws which dictate that certain % of an estate must be left to various next of kin. Also according to Irish Law, a parent must make proper provision for their children in their Will and a Will can be challenged on this basis. These are things you will need a solicitor to examine having looked at the full facts of the case.

Also, there may be questions over the validity of the Will. Personally, though I'm open to correction by a solicitor, I have doubts over the validity of dictating where assets can go at sometime in the future after already having been distributed i.e. can someone will something on condition that they must Will it onto someone else in the future?
 
P.S. the terms of your parents separation may also be a factor particularly if there are provisions for the upkeep of your mother in the separation.
 
A small correction to the previous post. Where there is a will the next of kin has no automatic entitlement to a share in the estate - that only applies in intestacy. (there are some provisons whereby a child could make a claim where there is a will but the provisions are complex and not relevant here).

If an executor has not distributed after a year (that is assuming there are assets over and above those you have a remainder interest in) you can threaten to charge interest. If there are legitimate reasons for delay you won't succeed but since the executor would be personally liable for the interest it'll certainly help you get a response.
 
putsch said:
A small correction to the previous post. Where there is a will the next of kin has no automatic entitlement to a share in the estate - that only applies in intestacy. (there are some provisons whereby a child could make a claim where there is a will but the provisions are complex and not relevant here).

If an executor has not distributed after a year (that is assuming there are assets over and above those you have a remainder interest in) you can threaten to charge interest. If there are legitimate reasons for delay you won't succeed but since the executor would be personally liable for the interest it'll certainly help you get a response.
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Putsch - could you go into some more details about charging in interest please? I also have a dodgy executor who seems no closer to sorting out the estate and now 14 months have passed.
 
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I want to be very careful here not to give a bum steer. In anything other than a very simple case, one year and even 18 months, is reasonable in terms of finalising an administration. Where there are complications regarding intestacy, social welfare or tax liabilities, missing beneficiaries, arguing beneficiares, difficulty identifying assets etc etc even those timescales are likely to be exceeded for good reason.
There is a school of thought that in a case where an executor is seriously out of line then interest can be charged after one year. I have not seen this done in practice (because there is usually good reason for delay) but a threat can produce results. You'd need to get your own solicitor to pusue this.
 
putsch said:
I want to be very careful here not to give a bum steer. In anything other than a very simple case, one year and even 18 months, is reasonable in terms of finalising an administration. Where there are complications regarding intestacy, social welfare or tax liabilities, missing beneficiaries, arguing beneficiares, difficulty identifying assets etc etc even those timescales are likely to be exceeded for good reason.
There is a school of thought that in a case where an executor is seriously out of line then interest can be charged after one year. I have not seen this done in practice (because there is usually good reason for delay) but a threat can produce results. You'd need to get your own solicitor to pusue this.
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ok - thank you
 
csirl said:
As your father was separated, then you and your siblings (if any) are legally speaking his next of kin.
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Surely the OP's mother is next of kin, regardless of being separated. My mother and father were separated but he died intestate and she gets 2/3 and me and my brother get 1/6 each
according to the succession act.

putsch said:
Where there is a will the next of kin has no automatic entitlement to a share in the estate - that only applies in intestacy
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My solicitor told me "you can disinherit your kids (but it may be challenged as you have to reasonably provide for them) but you cannot disinherit your wife in your will".

Have I got my wires crossed-is the spouse not considered "next of kin" at all?
 
Section 120 of the Succession Act 1965 makes provision for excluding spouses from claiming their legal right share or inheriting upon intestacy in certain circumstances. Separation can fall under this depending upon the circumstances.

With regard to granting someone property for life that is certainly possible. They gain a life estate in the property and upon their death the property passes to the person specified in the will. That applies to real property, ie land. I would less sure about shares in a company, you could be getting into the area of creating trusts but without knowing details that's one for the person's solicitor to deal with.
 
I have seen a situation where interest was claimed and had to be paid. There were six persons concerned and five of them claimed interest and received it as there are provisions made in Irish law for this. In the case I saw, the sixth person and the solicitors and accountants acted the maggot the sixth for the purpose of making life difficult although he received the bulk of the estate. The will was for a vast amount of money, many many millions, and the five in question received a paltry amount. I never and hopefully never will again, saw such an amount of deceit and wreck less professionals deal with the matter to favour one over the rest. I am a great believer in everybody sometime having a conscience and it will come home to roost. Even though I was not involved I have the papers for interest and the rules of it. If anyone on this thread wants the full legal details PM me and I will be happy to call my papers from storage. And don't give up - greed is a disease which can only be cured by rightful retaliation.
 
Have I got my wires crossed-is the spouse not considered "next of kin" at all?
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For married people, their husband/wife is considered next of kin if not divorced etc. Partners are not considered next of kin under any circumstances.

Where there is a will the next of kin has no automatic entitlement to a share in the estate - that only applies in intestacy.
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No not true. Even if there is a will, certain next of kin have an automatic entitlement to a share of the estate - it is called a Right Share. The Right Share can be up to 50% of the estate meaning that the deceased is legally only allowed to Will a maximum of 50% of the estate to others.

From citizensinformation.ie
The legal right share

If there is a will and the spouse has never renounced his/her rights and is not "unworthy to succeed", then that spouse has a right to what is called a "legal right share" of the deceased's estate.
  • If there are no children, the spouse is entitled to one-half of the estate;
  • if there are children, the spouse is entitled to one-third of the estate. The children are not necessarily entitled to the rest.
If you find that your spouse has made a will that does not recognise your legal right share, you may still claim your right. You do not have to go to court; the executor or administrator is obliged to grant you your share.
Your spouse is the person to whom you are legally married. Non-married partners have no legal rights to each other's estates. A church annulment has no legal status and so does not change the status of a spouse. If a partner in such an annulled marriage subsequently "remarries", this is not a legal marriage and the parties have no rights vis a vis each other. Partners may, of course, make wills in favour of each other but such wills may not negate the legal right share of a spouse.
 
There a bit of truth in it all. The situation is more complex than either "cannot disinherit wife" or "next of kin entitled to a fixed share".

Yes, everyone is free to dispose of property as they wish by will.

Yes, if not properly provided for by a will a spouse is entitled to claim a legal right share (one half if no kids - one third if kids) but this legal right share can be lost if the surviving spouse ceases to be a "spouse" by renunciation, divorce, separation, desertion, unworthiness to succeed....... ......many wives are left little or only life estates and do not cliam legal right share. (and that's a whole other minefield!)

In a testate situation children have no entitlement to a share in parents estate - but if the parent has failed in "moral duty" they could apply to court - its a complex area - the failure needs to be flagrant.

Joint property may go outside the will and impact on these shares.

Every case needs to be looked at on the facts of the case - relationship of spouses, extent of assets, number of children etc needs to be looked at carefully.
 
When you read the primary legislation, some consistant trends run through it. They are that a surviving spouse gets twice as much as surviving children and that if you have a Will and close family, you generally can only Will half your estate. And if someone who is due to inherit is deceased, their heirs get their interitance.

I would guess that the provision for children in a Will would have to be at least 1/6th of the estate if there is a spouse and at least 1/2 if no spouse in order to be consistent with the trends in the legislation. The legislation doesnt specifically say that the children get 1/6th if spouse or 1/2 if no spouse (consistent with them getting spouses 1/3 if spouse is deceased), but it is strongly implied and would likely be used as a guide if disputed. This is also 100% consistant with the intestate rules whereby spouse and children receive the same ratio of the whole estate.

Also, when you think about it, the guideline for what would morally be the correct amount to leave to children is the legislation itself - as this is, legally, what the Irish people (as our representatives put this legislation in place) think is the correct way to distribute an estate. That moral guideline is that children should get an amount equal to half the spouses Right Share. Would be difficult to argue that any less is ok. Remember that the word "moral duty" is in the legislation in this regard and "prudence" is in the Constitution, so a conservative "prudent" outlook favouring family members over outsiders would have to be taken in Court. Also, it is in accordance with the deceased persons means NOT the childs means i.e rich father must leave something.
 
All these posts are very interesting and helpful. However, there are a number of past occurences which leave the OP in a very difficult and vunerable position. E.g. The business which he was due to inherit after the Partner died has been sold and moreover he is out of work. This looks as if there is a mini-war going on between the son and the partner. Therefore, I would suggest the OP finds a solicitor specialising in Will matters to offer him guidance ASAP.As for costs, as the estate has been wrongfully handled, the proceeds of the sale of the assets should be used for the payment of the legal expenses. However the op would want to act quickly if an injunction is required to freeze the assets until all matters are dealt with correctly.
 
mercman said:
All these posts are very interesting and helpful. However, there are a number of past occurences which leave the OP in a very difficult and vunerable position. E.g. The business which he was due to inherit after the Partner died has been sold and moreover he is out of work. This looks as if there is a mini-war going on between the son and the partner. Therefore, I would suggest the OP finds a solicitor specialising in Will matters to offer him guidance ASAP.As for costs, as the estate has been wrongfully handled, the proceeds of the sale of the assets should be used for the payment of the legal expenses. However the op would want to act quickly if an injunction is required to freeze the assets until all matters are dealt with correctly.
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Firstly, thank you all for your advice… I think that I need to clarify a few points
Regarding my Mother, there was a stipulation within their legal separation that neither would claim on the others property so therefore she cannot benefit. As I am an only daughter, this means that both his partner and I are the only beneficiaries from my Father’s Will.
As far as his property is concerned, I was told (by his partner) that due to his partner and himself owning the property, his half would therefore automatically pass to her and I would not ever be able to make a claim on it and that he had no right to will it in the first place due to this, but there has never been any documentation supplied to show that this is correct.
In relation to the company, despite my solicitor sending numerous letters regarding his estate, we are not being furnished with any details whatsoever, regarding the company, accounts which were in his sole name etc. Now that his partner has withdrawn from any legal representation whatsoever, it is unlikely that we will be.
Due to the fact that I am a beneficiary do I have a right to know how his estate is progressing or is there any other way that I can find out? I may just be another skeptical benefactor, but as no details have been supplied I am wary that his partner may be disposing of his personal funds, particularly as anything in his own name was for my sole benefit. For example I know that he had app €15000 worth of prize bonds, but only €250 have ever been mentioned.
Mercman, in relation to the freezing of assets, do I have a right to do this? Also do you believe that the estate is being wrongfully handled as you mention above? I have already incurred several legal fees to date, but it seems to be getting me nowhere.
 
mercman said:
All these posts are very interesting and helpful. However, there are a number of past occurences which leave the OP in a very difficult and vunerable position. E.g. The business which he was due to inherit after the Partner died has been sold and moreover he is out of work. This looks as if there is a mini-war going on between the son and the partner. Therefore, I would suggest the OP finds a solicitor specialising in Will matters to offer him guidance ASAP.As for costs, as the estate has been wrongfully handled, the proceeds of the sale of the assets should be used for the payment of the legal expenses. However the op would want to act quickly if an injunction is required to freeze the assets until all matters are dealt with correctly.
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Firstly, thank you all for your advice… I think that I need to clarify a few points
Regarding my Mother, there was a stipulation within their legal separation that neither would claim on the others property so therefore she cannot benefit. As I am an only daughter, this means that both his partner and I are the only beneficiaries from my Father’s Will.
As far as his property is concerned, I was told (by his partner) that due to his partner and himself owning the property, his half would therefore automatically pass to her and I would not ever be able to make a claim on it and that he had no right to will it in the first place due to this, but there has never been any documentation supplied to show that this is correct.
In relation to the company, despite my solicitor sending numerous letters regarding his estate, we are not being furnished with any details whatsoever, regarding the company, accounts which were in his sole name etc. Now that his partner has withdrawn from any legal representation whatsoever, it is unlikely that we will be.
Due to the fact that I am a beneficiary do I have a right to know how his estate is progressing or is there any other way that I can find out? I may just be another skeptical benefactor, but as no details have been supplied I am wary that his partner may be disposing of his personal funds, particularly as anything in his own name was for my sole benefit. For example I know that he had app €15000 worth of prize bonds, but only €250 have ever been mentioned.
Mercman, in relation to the freezing of assets, do I have a right to do this? Also do you believe that the estate is being wrongfully handled as you mention above? I have already incurred several legal fees to date, but it seems to be getting me nowhere. Thank you.
 
Your Post is noted. In the first instance, the question is has your father's estate been granted Probate, as if it hasn't, none of the assets should have been touched in the case of disposal. You have incurred legal fees to no benefit -- did you ever think of moving solicitor as from what I am reading it appears that you late father meant well in your respect, but others appear to be having different ideas. I am not a Solicitor but have gained my knowledge on dealing with my own parents' wills and also and more importantly have in the past become involved were massive injustices were done. According to your original Post your father's partner had a lifetime interest, which in my opinion meant she could not sell the business, especially without your permission, but depending on the wording which one would have to read, would determine the exact situation. Again from what I read there is a case to freeze assets until your position is clarified and made secure in recognition of your fathr's wishes. Remember that is what a will is -- A Letter of Wishes. Send me a PM if you want any other points discussed or anything else.
 
Assets owned jointly will (prima facie) pass automatically to the surviving joint owner being your father's partner and do not form part of the estate. Unfortunately for you this may mean there are no assets in the estate and no need for your father's partner to take out probate.
 
Do not think that is right. The assets were left as Lifetime Gifts and are to pass after the partner's death to the deceased s daughter. Moreover the share of the assets owned by the deceased do form part of the estate for valuation purposes. And all estates, no matter how small have to go to probate.
 
Also, when you think about it, the guideline for what would morally be the correct amount to leave to children is the legislation itself - as this is, legally, what the Irish people (as our representatives put this legislation in place) think is the correct way to distribute an estate. That moral guideline is that children should get an amount equal to half the spouses Right Share. Would be difficult to argue that any less is ok. Remember that the word "moral duty" is in the legislation in this regard and "prudence" is in the Constitution, so a conservative "prudent" outlook favouring family members over outsiders would have to be taken in Court. Also, it is in accordance with the deceased persons means NOT the childs means i.e rich father must leave something.
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While this is perhaps off the OP's topic the above quote is just simply wrong. Your analysis implies that children have some kind of automatic claim on their parent's estate. They do not. The moral duty of a parent to provide for their child is assessed not on the basis of the parent's means but on the provision that has been made for them during their lifetime and on their need as well. If a child has been well looked after by their parents and is in gainful employment and well settled in life then the courts would be unlikely to find that a parent had failed in their moral duty It is a subjective test applied by the court and not one that automatically brings benefit to the children.
 
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